Leaked EU analysis of TTIP IPR negotiations

Below is a two page excerpt from a March 20, 2014 EU analysis of the TransAtlantic Trade and Investment Partnership (TTIP) negotiations on intellectual property rights, including geographical indications. The memo summarizes in a sentence or two the negotiations in eight types of intellectual property, patents, copyrights, designs, pharmaceutical regulatory test data, plant varieties, trademarks, trade secrets, geographical indications (GIs), as well as negotiations on enforcement, voluntary best practices, and cooperation on third country and multilateral IPR negotiations. Given the brevity of the summary, many of the important details of the negotiations remain secret. However, there are some new insights. Among them are the US resistance to provisions on unregistered designs for apparel, the US “stakeholder” concerns about pharmaceutical test data, which probably concerns EU proposals for greater transparency of such data, the fact some “relevant sectors of the [Obama] administration” are supportive of EU proposals on broadcaster rights, public performance and resale rights (all of which would require changes in US copyright laws), proposals for joint US/EU “country reports on enforcement” in third countries, and norms for trade secrets that will involve new US legislation. The discussion on GIs took up a half day, and appeared to cover familiar ground and no movement on either side.

In line with the previous rounds, there were two days of discussion on a long list of IP issues, including copyright, trademarks, patents, designs, enforcement, trade secrets, regulatory data protection, cooperation in relation to international issues (relations with third countries and international organisations) and voluntary best practices. Both sides addressed questions that had been identified but not answered during the third round. All discussion remained purely exploratory and do not signal a commitment to negotiate on any of the topics discussed.

The main achievement of the fourth round is the agreement of both sides to continue further work on the basis of a US proposal for the architecture of the IPR Chapter. It is important to highlight that the US proposal is along the lines of EU’s initial idea to have a chapter addressing a limited number of issue of interest to both parties. The idea is to have 4 sections: 1) list of international agreements; 2) general principles stressing the importance of IP as a tool for growth, jobs, and innovation, 3) binding commitments on a limited number of significant IP issues, and 4) cooperation on issues of common interest. Further work will be required in the next rounds as regards the exact placement of above mentioned issues structure defined for the architecture. The detailed discussion held so far have helped both sides to identify those issues raised by stakeholders that would not be adequately addressed in TTIP.

Exploratory discussions included the following:

Patents: continued discussion of technicalities on grace periods and a possible “package” approach (with other issues, such as 18 months publication), with the general (global) streaming goal in mind; the US is keen on a variety of improved international cooperation aspect. EU was clear about the challenges arising from the specificities of the European patent “systems” (unitary patent, EPO system, national patents).

Design: US lukewarm to the idea of unregistered design protection for apparel, since several similar so-called “fashion bills” have been unsuccessful in the past.

Plant varieties: while the protection systems are fragmented, the protection afforded appears to be fairly similar in both EU and US.

Regulatory test data: the US continues to convey the concerns of some stakeholders regarding the treatment of undisclosed (pharmaceutical) test data; US insistent on clarifying safeguards regarding TRIPS compliance issues and potential negative consequences in the 3rd countries.

Copyright: both sides gave updates on the respective ongoing review processes. Positive news is that the copyright related issues identified by EU stakeholders as relevant (broadcasters rights, public performance and resale rights ) are part of the US debate and supported by relevant sectors of the administration.

Trademarks: US indicated a clear interest in combating bad faith applications, possible need from cooperation from OHIM on “soft measure”, depending on the mandate in the new Trademark package. US perceives very different treatment of 2 IP rights: TMs and GIs.

Third country and multilateral cooperation: further in-depth discussion on how both parties could potentially coordinate and collaborate on the initiatives that are already in place (country reports on enforcement of IPR, economic studies, IPR awareness campaigns, MoUs).

Trade Secrets: TS is a clear priority for the US, they have a variety of detailed legislative acts on trade secrets in preparation. US interested in the new TS proposal in the EU and the importance of coherent approaches on the two sides.

Enforcement: US interested in the functioning of enforcement in the EU in general and mutual recognition of court decision in MS, considerable curiosity about the functioning and effects of Unitary patent; promising discussion on customs IPR enforcement (TAXUD) cooperation and agreement to exchange 3-4 identified priority areas at the next round

Voluntary best practices: agreement to build upon the work/discussion in the Transatlantic working group. Agreement to identify some priority areas/concrete ideas for the next round.

As regards next steps, the US will have further internal reflection and prioritizing on the basis of the proposed chapter architecture. By May they would be ready to have a clearer idea on their priorities. The EU indicated that we are preparing an internal note for discussion with Member States identifying the issues that are mature enough to move forward. On GIs, the two sides had a half day discussion.

The session allowed parties to deepen the discussion on the EU offensive interests based on the concept paper shared with the US at the third round. Both sides continued the exercise of preliminarily exploring of legal avenues available in the US as an alternative to the ™ system, notably standards of identity, labelling requirements and consumer protection against fraud and false advertising. The EU presented the economic rationale behind the GIs show lists, and address the US questions on a number of key provision of the EU regulations 11-51/2012 on GIs, notably on the following areas: relation between GIs and TMs, evocation and genericness, homonymous names and genericness, as well as the GI compound names the genericness of part of the compound name.

Both parties, in view of next sessions, agreed to consider the need to substantiate respective positions/interests with objective data and to address the remaining questions on respective legislations on GIs in a written form, intersessionally.

The EU informed of its intention to table more concrete text proposals. The US would consider giving a preliminary assessment to the EU short lists.